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June 1, 2022updated 18 Nov 2022 12:48pm

UK is SLAPP tourism capital of Europe but scale of ‘iceberg problem’ not fully known

By Aisha Majid

For decades, London has been known as a hotspot for “libel tourism” as England’s claimant-friendly defamation laws make it an attractive place for the wealthy to bring cases against their critics.

Data gathered by the Coalition Against SLAPPs in Europe (CASE) reveals that the UK is also the number one jurisdiction for cross-border strategic litigation against public participation, or SLAPPs – cases, usually based on defamation laws, that are intended to shut down public scrutiny.

Of the 62 transnational cases recorded by the 41 CASE NGOs between 2010 and 2021, almost a quarter (15) were in the UK, more than any other country. The real number of cases is almost certainly likely to be much higher due to cases that have gone unrecorded or were settled out of court.

While campaigners and defence lawyers have been dealing with media libel cases in the UK for decades the issue has come to the fore due to the sanctioning of Russian oligarchs, frequent culprits of SLAPPs, and recent high-profile cases such as those against journalists Catherine Belton and Tom Burgis (pictured). In March the Ministry of Justice launched a consultation into SLAPPs in a bid to try to clamp down on the practice.

"The Ukraine war has focused attention on this," says Caroline Kean, a defamation and litigation lawyer who represented Belton and Burgis in their lawsuits against Russian oligarchs and state-backed companies respectively.

"Ten years ago there was less rigour in investigating sources of finance and calling out potential money laundering. What you're seeing is in the last year or so, people have become increasingly uneasy about what's going on and have started evidence gathering in a way that they weren't before."

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While countries like Poland and Italy see more domestic SLAPP cases, the boom in companies willing to defend wealthy clients’ reputations for high fees has helped make the UK the top choice for those from abroad seeking to silence the press.

"You can be a fugitive from international justice hiding away from the US authorities and you still have no problem instructing very high profile reputation management lawyers who stop the story being reported [in the UK]," says Rupert Cowper-Cowles, a partner who specialises in media and data disputes at law firm Reynolds Porter Chamberlain. "You've basically got a growing rot in society - normally the oxygen of publicity would bring them to account."

The data available suggests that cases in the UK are more often brought by business people and companies, many of which are very well-resourced.

CASE has uncovered at least 14 SLAPP cases in the UK courts in 2021 - up from just one in 2018. While the increase in cases is in part down to better monitoring, Sarah Clarke, head of Europe and Central Asia for Article 19, believes SLAPPs are also a growing phenomenon.

The very high cost of legal action in the UK makes it a particularly effective jurisdiction for SLAPP cases, where in many instances the aim is simply to threaten critics into shutting down debate, rather than actually winning a case.

"A lot more people in the UK tell you I'm going to have to sell my house or use all my savings. You would rarely hear that in Europe," says Clarke.

Observer journalist Carole Cadwalladr said she feared she could lose her home and be made bankrupt while defending a libel case brought by Brexit funder Arron Banks. She was able to crowdfund thousands of pounds and the trial took place earlier this year, with judgment currently awaited.

Cowper-Coles says: "You've got to have a legal budget that's robust enough to stomach litigation and it's a huge ask. Your cost to trial could be £1.5m and the other side could invariably double yours. It’s quite astounding that could arise out of a single newspaper article and disproportionate. That's the chilling effect."

He adds: “[Journalists] can be warned off from writing any more on a story which has become the subject of litigation… And they don't have the appetite for writing anything else that might be litigious because frankly, one lawsuit could lead to the journalist having to re-mortgage their house."

It’s the fear of these crippling legal costs and pre-trial pressure that makes SLAPPs such an effective tool to force self-censorship.

"It's a real iceberg problem because what we don't know is the many stories over the years have been spiked", says Cowper-Coles. Journalists working on stories about corruption or other contentious topics who approach those criticised for comment are usually met with attempts to shut the story down.

"A lot of the time where a journalist asks for comment on the allegations or gives the opportunity for individuals to provide a response, they receive a response marked private and confidential, that may imply the risk of a law suit if you discuss the story with others. Frankly, journalists often back down and keep the fact of the threat to themselves," he says.

Kean points to the difference in coverage about Robert Maxwell after his death and Roman Abramovich after he was sanctioned by the government as a sort of proof of self-censorship.

"If you are looking for proof that fear of libel suits represses public interest reporting, go and look at the facts that were published after somebody powerful has died. Then you'll have an understanding of the scale of the things that are not being published due to fear of being sued," she says.

"There are no commercial publishers who are in the business of fighting claims that they're not going to win," she adds.

A November 2020 survey of investigative journalists from around the world reporting on financial crime and corruption by think tank Foreign Policy Centre found that the UK was by far the most frequent country of origin for legal threats, other than the journalists’ home countries.

Worryingly, it’s not just libel law that is being used against publishers. Privacy and data protection laws are being used to circumvent some of the extra protections that were given to publishers under the Defamation Act 2013, says Cowper-Coles.

In 2018, Sir Cliff Richard won a privacy case against the BBC after the broadcaster used a helicopter to film a police raid on his home following child sex abuse allegations. In another landmark privacy case this February, the Supreme Court ruled against Bloomberg after it named a businessman who was facing a criminal inquiry by a British regulator.

"It's a recent trend, but it's really significant. The Supreme Court handed down the [Bloomberg] judgment recently so it’s crystallised what feels like a very worrying development of the law. Effectively the general rule is that privacy wins over freedom of expression when you're reporting criminal investigations," says Cowper-Coles.

This was most recently demonstrated by the fact the Conservative MP arrested on suspicion of rape in May was not named in the media. 

Justice Secretary Dominic Raab’s consultation paper has suggested expansion of defences under the defamation law, a cap on recoverable costs and anti-SLAPP laws such as those in the US that allow defendants a way to quickly dismiss meritless lawsuits.

Cowper-Coles hopes that the Government consultation will also extend the defences in defamation law to data protection and privacy.

Last month the Society Of Editors echoed the call for urgent reform, backing the introduction of a new anti-SLAPP law or tweaks to existing legislation to help cap costs and tackle the common imbalance of resources between wealthy plaintiffs and defendants.

Kean believes that amending current libel law will help reverse the balance.

"I would personally like to not use the word SLAPP. I'd rather look at our libel law rather than looking at this as though it's something unique and something different," she says.

She adds: "It's almost impossible for anybody, particularly if they've done something that's an exposé, to have that level of accuracy in every single word that they have used on something substantial. You're asking superhuman levels of people who are doing their best to bring a story that needs to be told to public attention…you have to cut them some slack.

"It doesn't give journalists a completely free rein because obviously they do get things wrong. And obviously if they got it wrong, they should correct it. But you shouldn't be dragged through the courts at a cost of potentially millions of pounds just because with the benefit of hindsight, you could have picked a handful of different words to express yourself.

"When you are looking at a serious work of investigative journalism, the dispute is often not about the substance of what has been said, but about picking over the minutiae of the language used."

Picture: Jess Glass/PA Wire

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